McAdams v. Union Security Life Insurance

MITCHELL, Judge. The plaintiff brought forward on appeal only his assignments asserting that the trial court erred in granting the defendant’s motion for a directed verdict at the close of all of the evidence and in entering the judgment. He specifically abandoned his assignment relative to the denial of his motion for directed verdict in his favor. We limit our review and opinion to a consideration of those assignments brought forward. It is elemental that, on a motion by a defendant for a directed verdict, the plaintiff’s evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom. Farmer v. Chaney, 292 N.C. 451, 233 S.E. 2d 582 (1977); Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E. 2d 678 (1977). Any conflict in the [467] evidence must be resolved in the plaintiffs favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E. 2d 549 (1973). The plaintiff contends that his evidence made out a prima facie case of loss within the coverage of the policy, and that the burden was upon the defendant to prove that it was relieved of liability by an exclusion or limitation of the policy. The plaintiff argues, therefore, that the trial court erred in granting a directed verdict in favor of the defendant, as the defendant was a party having the burden of proof on a contested issue. In support of this argument, the plaintiff refers us to Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). That case held that a trial court, acting pursuant to G.S. 1A-1, Rule 50, cannot direct a verdict in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. 278 N.C. at 417, 180 S.E. 2d at 311. No such situation is presented by the case sub judice. Here, the defendant was not required to rely upon the credibility of its witness. The defendant’s witness, Dr. Michael, did not substantially contradict the plaintiffs evidence, which consisted largely of the testimony of the plaintiff. Rather, Dr. Michael’s testimony tended to explain and clarify the plaintiff’s testimony and not to vary with that testimony. Thus, the prohibition of Cutts is inapplicable to the present facts. See Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). The plaintiff’s own testimony, as well as other evidence introduced by him, clearly indicated that he suffered from arteriosclerotic heart disease with coronary insufficiency which was diagnosed and treated no later than February of 1973. His evidence also clearly indicated that he was specifically informed by Dr. Michael no later than February of 1973 that he was afflicted with this specific disease. Additionally, the plaintiff’s evidence indicated that the documents submitted in support of his claim under the policy themselves specifically stated that the disease causing his disability had arisen prior to his being brought under the coverage of the defendant’s policy. The defendant’s evidence, in the form of Dr. Michael’s testimony, was not significantly at variance with the plaintiff’s evidence and could be considered by the trial court in ruling upon the defendant’s motion for a directed verdict. Hincher v. Hospital Care Asso., 248 N.C. 397, 402, 103 S.E. 2d 457, 461 (1958). Although Hincher dealt with a motion to nonsuit, the rules regarding directed verdicts [468] pursuant to Rule 50 are the same as those previously controlling nonsuit. Younts v. Insurance Co., 281 N.C. 582, 189 S.E. 2d 137 (1972); see also, Clark v. Bodycombe, 289 N.C. 246, 221 S.E. 2d 506 (1976). In the instant case it was apparent that the testimony of Dr. Michael for the defendant tended to harmonize with, explain and clarify the plaintiff’s testimony without contradicting that testimony. The only legitimate conclusion which could be drawn from the plaintiff’s testimony alone or in conjunction with that of the defendant was that the plaintiff suffered from arteriosclerotic heart disease with coronary insufficiency prior to his coverage under the defendant’s policy. It is equally unchallengeable that the defendant’s disability arose from this disease. If this establishes the defendant’s affirmative defense as a matter of law, the directed verdict in favor of the defendant was proper. Hincher v. Hospital Care Asso., 248 N.C. 397, 402, 103 S.E. 2d 457, 461 (1958). The plaintiff next contends that the established fact of his preexisting arteriosclerotic heart disease with coronary insufficiency did not establish an affirmative defense under the specific exclusion of the policy relied upon by the defendant. That provision of the policy specifically excluded from coverage any disability “to which a contributing cause directly or indirectly is . . . sickness contracted prior to the beginning date of the individual term of insurance.” The plaintiff contends that his condition was not a “sickness” as referred to in the policy. He contends that the term “sickness” may not be equated with the term “disease” or similar terms. We do not agree. Throughout the proof of claim report submitted to the defendant by the plaintiff and introduced into evidence, it is apparent that the two terms are used synonymously. Additionally, the Supreme Court of North Carolina has indicated that the terms “disease” and “sickness” are synonymous absent some indication that the parties intended otherwise. See, Glenn v. Insurance Co., 220 N.C. 672, 676, 18 S.E. 2d 113, 115 (1942). We think, therefore, that the plaintiff’s proven preexisting “disease” constituted a preexisting “sickness.” We have recently indicated that whether preexisting arteriorsclerosis is to be viewed as a disease or a normal condi [469] tion of aging when recovery is sought under an insurance policy is, in some cases, a question of fact for the jury. Emanuel v. Insurance Co., 35 N.C. App. 435, 242 S.E. 2d 381 (1978). In that case, however, we were faced only with evidence of arteriosclerosis. No such question need be presented to the jury in cases such as the one sub judice in which all of the evidence indicates the plaintiff suffered from arteriosclerotic heart disease with coronary insufficiency which caused the disability and existed prior to his coverage by the defendant’s policy. We find that the established fact of the plaintiffs preexisting disease was sufficient to establish the truth of the defendant’s affirmative defense as a matter of law, and the trial court properly granted the defendant’s motion for a directed verdict. Hincher v. Hospital Care Asso., 248 N.C. 397, 402, 103 S.E. 2d 457, 461 (1958). The plaintiff has also assigned as error the signing and entering of the judgment after the directed verdict by the trial court. This assignment is without merit. When the motion for a directed verdict under Rule 50 was granted, the defendant was entitled to a judgment on the merits unless the court permitted a voluntary dismissal of the action under G.S. 1-1A, Rule 41(a)(2). Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971). As a voluntary dismissal was neither requested nor granted, the trial court’s entry of judgment was proper. The judgment of the trial court was without error and is Affirmed. Chief Judge BROCK and Judge HEDRICK concur.